Early High Court Decision 201Du1525 ( October 17, 2011)

It is difficult to recognize that the acquisition price of real estate was paid additionally.

In light of the fact that no objective financial data consistent with the assertion is submitted, it is difficult to recognize that the transferee has made an additional payment for the acquisition of real estate in consideration of the fact that there is no entry in the sales contract on the grounds of a claim and obligation between the transferor and the transferor, or on the specific amount, etc.

2011Guhap1526 Revocation of Disposition of Imposing capital gains tax

IsaA

Chuncheon Director of the Tax Office

November 23, 2012

January 18, 2013

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The imposition of capital gains tax of 000 won (including additional tax) that the Defendant rendered to the Plaintiff on March 7, 2011 shall be revoked.

1. Details of the disposition;

가. 원고는 김BB으로부터 춘천시 신동면 OO 00 전 185㎡， 같은 리 000 대 298㎡， 같은 리 00 대 255㎡， 같은 리 000 대 483㎡ 및 같은 리 000， 같은 리 0002 지상 조립식 판넬조 단층창고 및 사무실 231.84㎡， 같은 리 000 지상 시멘트 벽돌조 기와 단층 73.05㎡(이하 '이 사건 부동산'이라 한다)를 취득하여 2004. 3. 22. 원고 앞으로 소유권이전등기를 마쳤다가， 이 사건 부동산이 2009. 4. 29. 임의경매로 매각되었다.

B. On June 29, 2009, the Plaintiff filed a preliminary return on the transfer income tax for the year 2009 with the acquisition value of the instant real estate at KRW 000, and the transfer value at KRW 000.

C. On the other hand, on May 31, 2004, KimB reported the transfer income tax of 000 won to the Plaintiff, and the Defendant, as a result of investigating the Plaintiff’s real estate acquisition value of the instant real estate, deemed the acquisition value as 000 won and calculated the transfer margin again, and made a disposition imposing transfer income tax of 000 won (including additional tax) for the Plaintiff on March 7, 201 (hereinafter “instant disposition”).

D. On April 18, 201, the Plaintiff appealed and filed a petition for an adjudication with the Tax Tribunal, but was dismissed on June 17, 2011.

[Grounds for Recognition] The non-contentious facts, Gap evidence 1 to 3, Eul evidence 1 and 4, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

1) The plaintiff's assertion

The purchase price of the instant real estate is KRW 00, and the Plaintiff, according to a special agreement with the KimB, subrogated to the Han Bank of KimB to pay part of the purchase price of the instant real estate, KRW 000 (loan principal, KRW 000, and KRW 000) in lieu of payment of a portion of the purchase price of the instant real estate, succeeded to KRW 00,00, and KimB shall deduct KRW 00,000 borrowed from the Plaintiff on March 10, 2004, which is the transfer of the instant contract, from the purchase price, and paid the remainder to KimB on March 25, 2004, the remainder as the remainder.

2) The defendant's assertion

Of each of the above amounts claimed by the Plaintiff as the acquisition value of the real estate of this case, KRW 000 and KRW 000 which the Plaintiff borrowed from the Plaintiff on March 10, 2004, that the Plaintiff paid the remainder to KimB on March 25, 2004, and KRW 100,000, which the Plaintiff borrowed from the Plaintiff on March 10, 204

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

The burden of proof on the legality of taxation is imposed upon the tax authority. The tax authority, in principle, bears the burden of proof on the person liable for duty payment, but the necessary cost deduction is most favorable to the person liable for duty payment, and the tax authority has difficulty in proving it. Therefore, if it is reasonable to have the person liable for duty payment establish it in consideration of difficulty in proof or equity between the parties, it should be returned to the person liable for duty payment (see Supreme Court Decision 91Nu10909 delivered on July 28, 1992). The following circumstances are met: (i) the Plaintiff’s PEE transferred 00 won to the 10B on March 10, 204, and the Plaintiff’s PEB’s 20 on the above PEB’s account, which were written in evidence Nos. 7 and 6; and (ii) the Plaintiff’s PEB’s 30 on the above PEB’s account, which were not written in the above PEB’s account.

Although KimB actually paid KimB, and the Plaintiff paid 000 won to KimB, this is different from the method of payment under the sales contract, and as above, it is difficult to believe the contents of the sales contract as they are, due to the inconsistency with the Plaintiff’s assertion. (4) The Plaintiff completed the registration of ownership transfer on March 22, 2004 concerning the instant real estate, and (5) according to the Plaintiff’s receipt, the Plaintiff paid 00 won to KimB on March 25, 2004, the date of the above registration of ownership transfer, and it is difficult to easily understand that the seller completed the registration of ownership transfer before receiving 00 won or more. (5) The Plaintiff asserted that the acquisition price of the instant real estate was 00 won for the preliminary return of transfer income tax for 2009, while the Plaintiff asserted that the transfer price was 00 won for the instant real estate, and that the Plaintiff’s assertion that the transfer price was 00 won for the instant real estate acquisition price, and that the Plaintiff’s claim was not consistent with the above evidence.

3. Conclusion

Then, the plaintiff's claim of this case is dismissed as it is without merit, and it is decided as per Disposition.